Subject: GPL court test
From: dlw <>
Date: Thu, 20 Sep 2007 22:01:16 -0400

The SFLC is testing the GPL in a federal district court.

If the suit goes forward (which I seriously doubt) the District Court 
will dismiss due to failure to state a claim.

Failing to provide source code is a contract breach and not a violation 
of scope of use under copyright law.

1.) There is no “automatic” contract rescission under New York law.

“. . . recession of the contract only occurs upon affirmative acts by 
the licensor, and a breach by one party does not automatically result in 
recession of a contract. Id. at 238 (“New York law does not presume the 
rescission or abandonment of a contract and the party asserting 
rescission or abandonment has the burden of proving it”).”; Atlantis 
Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. 
April 30, 2007)

2.) Federal Courts will not hear copyright license rescission claims.

The First Circuit Court of Appeals ruled a contract rescission in 
federal court concerning copyright infringement is preempted by 17 USC 
sec. 301.

“Because Santa Rosa seeks rescission of his contract, if we were to 
grant him the relief that he sought, we would be required to determine 
his ownership rights by reference to the Copyright Act. In such a case, 
there is little question that we would be merely determining whether 
Santa Rosa was entitled to compensation because of "mere copying" or 
"performance, distribution or display" of his recordings. Data Gen. 
Corp., 36 F.3d at 1164. As such, 17 U.S.C. § 301(a) preempts Santa 
Rosa's rescission claim.”; /Santa-Rosa v. Combo Records, /05–2237 (1st 
Cir. Dec. 15, 2006).